Semi-weekly south Kentuckian. [volume] (Hopkinsville, Ky.) 1883-1889, 1887-11-04


pellee; Appeal from the Trigg Cir
cult Court.
Opinion OF the Court delivered b.
Judge Holt:
The appellant, Miles G. Radford
stands convicted of man-slaughte
for the killing Of Henry ID. johnson
Unlike, as 10 usual in such cases
there is not much conflict of testimo
ny. The deceased was the tenant o
the accused. lie had upon the farm
Of his landlord some corn, and wa
indebted to him for rent. A few
days before the killing, he with hi,
team was passing by the house ol
the accused on his way'to remove
the corn, when the latter stopped hin
and told him that he wanted his rent
out of 1t. Some conversation oc-
CURED between them about fighting
but upon suggestion from the ac-
cused that they both belonged to the
church, they agreed that neighbor
should settle 1t, and the deceased
turned back home.
The day before the killing, but at
different times, each OF them went TO
a certain neighbor, and he, at their
instance, agreed TO go 10 the farm the
next day and settle the matter
between them. About sunup, how
ever, the next morning the deceased
with his team, aud in company with
his wife, was driving by tho house of
the accused, and ON his road to get
the corn. The attention of the ap-
pellant was called TO it by some OF
his family, and as he passed through
the ball iu going out of the house TO
where johnson was, he picked up a
gun, which, as the testimony shows,
had been lately brought to the house
by his grandson, and which, as the
accused says, was there without his
knowledge. lie testifes that he did
not take 1t with any purpose of shoot
ing the deceased and only upon the
idea of protecting himself If 1t be-
came necessary, from violence ut the
hands of johnson, who was a large,
stout man in middle life, while the
accused was crippled in his right
hand, and then seventy -four years OF
Aye. Upon getting out OF the house,
he motioned to or told the deceased
70 stop and the latter did 80. Some
then occurred, the sub
stance Of which was that the deceAs-
ID announced his purpose to get the
,orn, while the accused asked him 10
'ecure him in his rent, or to wait un-
i'll their neighbor settled the matter
between them, as they had agreed he
hould do. During this compensation,
he deceased made one or moro un-
successful efforts TO get hold of the
run. lie adhered to his purpose,
ay ing that he had been advised that
10 could take all of the corn, and that
10 was going TO do so. He then
tarted in his wagon toward the corn
ield, the accused walking along in
ront of the team, while tho two
,rand-daughters, of the latter, at his
equsst, followed behind the wagon
There il some evidence that the
Iccused, while on the road TO the
ield, tried to persuade the deceased
o turn back. He says that he had
10 purpose in going to the field or
II taking the gun 10 attack johnson
,ut TO forbid him from entering tho
ield, and then if he still persisted IN
moving the corn to go and get an at
achment when he began to do so,
" hen they arrived near the field the
ccused stopped upon the side Of the
Dad while the deceased drove by him
nd up to the corn field fence, hand
d the reins to his wife. and at once
umped out of the wagon, and, with
lis weip in his hand, started back di-
ectly toward Radford. The latter
garned him once or moro not to come |
ny nearer TO him, but he persisted
nd when within seven or eight feet |
f the accused, he shot him.
There is some evidence tending to
how that as johnson 90 advanced
e put one hand behind him as if to |
raw a weapon; and the testimony
hows that ho WAS a dangerous, de-
man.
A reversal Is asked upon two
; and we have stated the owl
ence in substance, but not in detail,
ecause 1t is necessary TO their con-
First, because of the introduction |
{ incompetent testimony. Second,
ocause the jury we're improperly in
tructed.
Upon the cross-examination of the
ccused, and also ofhis grand-daugh-
,r, the Commonwealth was permit
ed oyer the objection Of the defend
mt to ask them if the wife of john
on did not, just after her husband
vas shot, go to him and smear her
ands and arms with his blood; and
n affirmative answer being given,
ho Commonwealth then introduced
he widow, who testified that she did
ot do so.
This was an immaterial matter 1; |
nd it is we'll settled that a witness
annot be examined upon subject |
ot relevant to the issue for the mere |
urpose Of contradicting him.
Mr.. Starkie says: "a witness is
OF TO be ross.examined as to any
istinct collateral fact for the pur-
ose of afterward impeaching his tes-
imony by contradicting him.
,tarkie on Evidence, 200.
This rule is supported by an un-
roken line of decisions, among
which are Nation VS.. People, 6, Par
er's Grim. Reports, Hildeburn vs..
Jurran, 65, Pa. st. SO, Comb. Ys.
Winchester, 80 N. II. l3, Harper vs..
:. r. Co., AZ No, 567, Cornelius Va.
)omwlth. Is. b. M. 539 aud Ken
Iedy VS.. Comwlth., IA, Bush $40.
The rule is admitted by the able
Attorney General in this case: but
{ is urged, that the Witnesses were
therwiso contradicted by Mrs.
Johnson, and that the accused could
Iot have been prejudiced by the ad-
mission of the testimony.
A court should not assume in a
ase involving life or liberty that in
ompetent testimony has not oper-
ted to tho defendants prejudice un-
ess this be clearly 80. 1t is danger.
,us ground upon which TO tread ;snd
f il be the least doubtful, the line
hould not be crossed. 1t is true that
Ars. johnson contradicted these wit
,esses in some other matters; but a
,sreful reading of the testimony